R v SD

[2025] NSWDC 174

District Court

New South Wales

Medium Neutral Citation:

R v SD [2025] NSWDC 174

Hearing dates:

09 May 2025

Date of orders:

09 May 2025

Decision date:

09 May 2025

Jurisdiction:

Criminal

Before:

Everson SC, DCJ

Decision:

(1)            The offender is convicted of each of the 19 offences for which he was found guilty by the jury on 27 February 2025.

(2)            The offender is sentenced to an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years.

(3)            The non-parole period will commence on 19 November 2024 and will expire on 18 November 2039.

(4)            The balance of term of 5 years will commence on 19 November 2039 and will expire on 18 November 2044.

(5)            The offender will be eligible for release to parole at the expiration of the non-parole period.

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Plessis v R [2024] NSWCCA 164

R v Wilson (a pseudonym) [2023] NSWDC 354

R v RE [2023] NSWCCA 184

Ragg v R [2022] NSWCCA 15

Zhao v R [2019] NSWCCA 203

Chamseddine v R [2017] NSWCCA 176

R v Gavel [2014] NSWCCA 56

Shannon v R [2006] NSWCCA 39

R v Boulad [2005] NSWCCA 289

R v Scott [2003] NSWCCA 28

R v Burchell (1987) 34 A Crim R 148

Category:

Sentence

Parties:

Rex (NSW) (Crown)
SD (Offender)

Representation:

Counsel:
Ms F Vella (for the Crown)
Mr T Bicanic (for the Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (for the Crown)
Mr J Walford from Penrith Criminal Law Centre (for the Offender)

File Number(s):

2023/00362052

Publication restriction:

There are prohibitions on the publication of matters directly or indirectly identifying the victims in these proceedings.

JUDGMENT on sentence

Introduction

1. There are prohibitions on the publication of matters directly or indirectly identifying the victims in these proceedings. Those prohibitions will be facilitated by the use of pseudonyms. The offender will also be referred to as "SD". SD's daughter, the victim of each offence will also be referred to as "GD".

2. On 17 February 2025, SD was called to trial on an indictment that contained 22 counts. Each count alleged an offence of sexual misconduct by him towards GD. The prosecution has framed its case by reference to ten alleged incidents. The ninth incident was said to be the basis for counts 18, 19 and 20. On 25 February 2025, a verdict of not guilty by judicial direction was returned on counts 18, 19 and 20.

3. On 27 February 2025, SD was found guilty by the jury of each of the remaining 19 counts on the indictment and is consequently to be sentenced on:

1. Four offences, being the 4th, 6th, 8th and 11th counts, of sexual intercourse with a child under the age of 10 years, contrary to sub-section 66A(1) of the Crimes Act 1900, and for which the maximum penalty is imprisonment for life and the prescribed standard non-parole period is 15 years;

2. Three offences, being the 13th, 15th and 22nd counts, of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years, contrary to sub-section 66C(2) of the Crimes Act and for which the maximum penalty is imprisonment for 20 years and the prescribed standard non-parole period is 9 years;

3. Seven offences, being the 1st, 2nd, 3rd, 5th 7th 9th and 10th counts of sexual touching a child under the age of 10 years, contrary to sub-section 66DA(a) of the Crimes Act and for which the maximum penalty is imprisonment for 16 years; and

4. Five offences, being the 12th, 14th, 16th, 17th and 21st counts, of sexual touching a child of or above the age of 10 years and under the age of 16 years, contrary to sub-section 66DB(a) of the Crimes Act and for which the maximum penalty is imprisonment for 10 years.

4. The evidence of the victim GD was framed in its presentation before the jury as multiple incidents within which 2 or 3 offences occurred, as pleaded in the various counts on the indictment.

Fact Finding

5. The jury's verdicts reflects acceptance of the evidence of the child victim GD, including the alleged acts underpinning the actus reus of each offence. Notwithstanding that result, it falls to this Court to find the facts on sentence, consistent with the jury's verdicts and to assess the objective seriousness of the offending and the separate but related task of assessing the moral culpability of the offender. Facts adverse to the interests of the offender will only be taken into account if those facts have been established beyond reasonable doubt. Facts submitted to be in favour of an offender need only to be proved on the balance of probabilities.

6. Each of the offences occurred within a domestic family setting. The offender SD was born in 1990. In May 2018, he and his partner and their two children moved into a house in the Penrith suburb of Glenmore Park. The offender and his spouse shared the master bedroom at the front of the house, which was the only room with an ensuite. The victim GD was of or between 9 and 13 years of age at the relevant times of the offending. She and her younger brother had their own bedrooms in the middle of the house. Whilst the victim attended a primary school, her younger brother attended a day care centre. Their mother worked outside the home four days a week. From about March 2019, the offender worked as a fire alarm tester. Typically, he was the first to rise, leave home for work and return home from work each day.

7. At relevant times, the offender and his family used a family social networking software application designed primarily to enable friends and family members to share their location with each other.

8. The Crown has tendered a statement of facts for the purpose of sentencing. Counsel for the offender submits that there is no issue that the court could find those facts are consistent with the jury verdicts and broadly in accordance with the proposed facts filed by the Crown.

9. As became clear by the conclusion of the evidence of GD, the counts on the indictment are not in a chronological order. She recounted the incident that occurred first in time, that being the offences charged in the 1st and 2nd counts; and the incident that was the last in time that is said to be the offences charged in the 21st and 22nd counts. In between those two incidents, were the remaining counts.

The First Incident - 1st and 2nd counts

10. The victim SD did remember the exact date of the first incident but believed it could have been 2nd or 4th of January 2019.She woke up in the middle of the night to her father being in her bed, using his fingers to rub in a circular motion on her vagina, over the top of her pyjamas. That is the 1st count. The offender then used his fingers to rub in a circular motion over the victim's nipples, over her clothing. That is the 2nd count.

11. The victim said said she did not think much of the incident because he left after "like 10 minutes". She assumed it that happened at "like 1.00 or 2.00 am".

12. Later, on the same morning, the victim was woken again by the offender, who was wearing work clothes. He took her to the loungeroom where he asked her if she remembered what he had done earlier. She told him that she did. He then left for work, and she went back to bed. The offender typically left for work at about 6:00am.

The Monopoly Game Incident - 3rd and 4th counts

13. In July 2019, there was an occasion when the victim was at home with the offender while her younger brother was at daycare and her mother was at work. The victim asked the offender to play 'Monopoly' on the PlayStation with her. The PlayStation console was located at that time in a room that the victim later described as the offender's "den". The victim was sitting on the floor of the den when the offender entered the room. She got up from the floor and sat on the lounge, where the offender came to join her. The offender then used a finger to rub in a circular motion on the victim's vagina, over her clothes, thereby committing the 3rd count.

14. The offender then committed the 4th count. He moved the victim by pushing her towards the backyard wall, so that her head was resting on the armrest of the lounge. He then removed her pants and underwear and pushed his own pants and underwear down to his knees. At this point, the offender was positioned over the top of the victim with his knees bent and his hands holding her by the back. The offender then inserted his penis into the victim's vagina, pushing upwards with his legs so that his penis went further inside. The victim gripped onto the offender's arms and noticed that he was tense as though he was flexing his muscles. She later described how he did not feel like the normal dad that she knew.

15. The offender then asked the victim to check the aforementioned family social networking application to see where Kahla was. She did so and told the offender that her mother was 12 minutes away. The offender withdrew his penis from his 9-year-old daughter's vagina, pulled his pants back up and went to the kitchen to cook a meal for dinner.

The Mother's Birthday Incident - 5th and 6th counts

16. On 11 September 2019, the victim came home from school to find her father at home and cooking dinner. It was the birthday of the victim's mother. The offender his daughter to write on the birthday card intended for her mother. GD did so, before going to her bedroom and sitting on her bed to play with her iPad. The offender entered the victim's bedroom and sat next to her on her bed and committed the 5th count by rubbing his fingers in a circular motion on her vagina.

17. After a few minutes of doing this, the offender embarked on the commission of the 6th count. He removed his daughter's pants and underwear. He removed his pants, underwear and shirt. He pulled his daughter by her ankles to the end of her bed and inserted his penis into her vagina. He picked her up so that she was in his arms with her legs wrapped around his waist. The offender then walked around SD's room before placing her back on her bed before withdrawing his penis from her vagina, getting dressed and leaving her room.

The Digital Penetration Incident - 7th, 8th and 9th counts

18. On an occasion in late 2019, the victim arrived home from school. Her father was already there. At around 5:00pm, she sat on the lounge to watch television. After about 15 minutes the offender joined her. He sat next to her and committed the 7th count. He began by rubbing her vagina in a circular motion, over the top of her clothes, with one finger then two. He then lifted the waistband of her shorts and placed his hand between her underwear and skin and committed the 8th count by using two fingers to rub the victim's clitoris in a circular motion for about seven or eight minutes.

19. Then the offender committed the 9th count by sexually touching her nipple area on the outside of her clothing. The offender then stopped for no apparent reason and left the room. The victim continued watching television.

The Before Cheerleading Practice Incident - 10th and 11th counts

20. The victim had a scheduled after school sporting practice commitment on a Tuesday in 2019. The offender drove her home from school. Once there, the offender started cooking dinner and the victim went into the bedroom shared by her mother and the offender bedroom to get a hairbrush. The offender followed her in and sat on the bed. He said to the victim, "Come sit next to me". She complied and the offender committed the 10th count by using his fingers to rub her vagina in a circular motion over the outside of her clothing.

21. Then the offender committed the 11th count. He pushed the victim's shoulders so that she was laying back on the bed. He moved her further onto the bed by pushing her legs. At this time, the victim was wearing pants and a leotard as she had been ready to go to cheerleading practice. The offender removed the victim's pants and leotard, before pushing his own pants and underwear down just low enough to expose his penis. The offender then inserted his penis into the victim's vagina and began using his lower body to push his penis in and out. The offender was positioned with his knees bent and his body arched over the victim, with his hands resting beside her.

22. The offender looked at the clock on the bedside table before withdrawing his penis from the victim's vagina, getting dressed and then going back to cooking dinner. The victim put her clothes back on and went back to getting ready for cheer practice, which she attended later that night.

The Room Cleaning Incident - 12th and 13th counts

23. By New Years Day 2020, GD had reached the age of 10 years.

24. On an occasion between January 2019 and November 2020, the victim caught the bus home from school. When she arrived home, the offender was already home from work. The victim finished her homework while the offender cooked dinner. Once she finished her homework, she started to clean her room. The offender came into her bedroom to help her clean it. She sat on the bed. The offender sat next to her and proceeded to commit the 12th count by using his fingers to rub the victim's vagina in a circular motion, over her clothes. He then placed his hands on her chest and shoulders, pushing her backwards onto the bed. He grabbed her around the mid-thigh and pushed her up towards the pillows in a wheelbarrow-like motion.

25. The offender then removed the victim's pants and underwear by grabbing them at the waist and pulling them down. He removed his own pants and then committed the 13th count. He inserted his penis into the vagina of his probably 10-year-old daughter. He grabbed her back and shoulders with both hands while pushing into her vagina with his penis. While this was happening, the victim noticed that the offender's body was tense as though he was flexing his muscles.

26. After some time, the offender asked the victim to check the aforementioned family social networking application to check on the location of the victim's mother. The victim complied and told the offender that her mother was 20 minutes away. The offender withdrew his penis from her vagina.

The Illness at Home Incident - 14th and 15th counts

27. Sometime between September 2019 and November 2020, there was an occasion when the mother and brother of the victim became ill and in order to prevent the illness from spreading to the offender and the victim, GD's mother decided that GD should sleep in the same bed as the offender while she slept in the same bed as GD's brother.

28. Accordingly, that is what occurred, and the offender took the opportunity to commit the 14th and then 15th counts. During the night, the victim awoke to the feeling of the offender rubbing her vagina with his fingers in a circular motion, over her clothes. The offender then moved her so that she was lying flat on her back. He pulled her pants down from the waistband and inserted his penis into her vagina. The offender then moved his lower body so that his penis was moving inside of the victim's vagina. The victim later recalled how she had noticed that the clock on the bedside table read 11:10pm when she first awoke, and 11:23pm when the offender withdrew his penis from her vagina. Afterwards, she put her pants back on, rolled over and went back to sleep.

Parental Separation and Occasional Visits

29. In November 2020, the offender and GD's mother separated but remained living in the same house until March 2021 when the offender left the home and relocated to Canberra to commence living with his new partner.

30. Between June and July 2021, the offender moved back to Sydney and spent some nights sleeping at the home of GD her mother and brother in a room by himself. This usually coincided with a special occasion like Easter, Christmas, or a birthday.

The Naked Offender in the Victim's Bed Incident - 16th and 17th counts

31. There was an occasion between June 2021 and December 2022, when the offender slept over at GD's home. On this occasion, she awoke to find the offender naked and next to her in her bed as he was committing the 16th count. He was holding her hand and placing it around his penis, while moving it in an up-and-down motion. The victim later described how the offender's penis felt warm and was neither hard nor soft. This continued for about four to five minutes.

32. The offender then committed the 17th count by putting his hand under the victim's shirt and pinching her nipples. After some time, he left the victim's bedroom, and she went back to sleep.

The Final Incident - 21st and 22nd counts

33. The victim GD was home sick from school on 21 July 2023, suffering from a migraine headache and nausea. Usually, GD would pick up the younger brother from school. GD's mother had just started a new job and had asked the offender, to go over to the house and pick up GD's younger brother from school. The victim recalls that her mum either messaged or called her to tell her that her father was coming and would pick up her brother.

34. The offender arrived much earlier than he had been requested to arrive. He had finished a training course and brought sushi with him for he and his daughter to eat. After lunch, GD sat on the couch and the offender sat next to her. He took that opportunity to commit the 21st count by kissing her on her neck and then "making circles" on her vagina while she was fully clothed.

35. The offender then grabbed the victim's pants and underwear at the waistline and pulled them down to her ankles. He removed his own pants and underwear and positioned himself on his knees next to the victim.

36. The offender then committed the 22nd count. He moved the victim so that she was laying on her back with her head on the armrest of the lounge. He then positioned himself over her and inserted his penis into her vagina. The offender had sexual intercourse with the victim for about 10 minutes, during which his hands were placed on top of her shoulders. During the sexual intercourse, the offender continued to kiss the victim on the lips and was "playing with [her] boobs through [her] clothes". She "kept [her] eyes closed" while this was happening.

37. She noticed that the time was 2:45pm when the offender ultimately removed his penis from her vagina. She did not notice anything about his body when the sexual intercourse stopped, and nothing looked or felt different. The offender put his pants back on and then left the house to pick up GD's brother from school.

Objective Seriousness

38. Before a finding as to the objective seriousness of each offence is made, the general principles that inform the issue of objective seriousness will be addressed along with the use of labels to describe the offending, as contended for by the Crown.

39. The relevant maximum penalty and any applicable standard non-parole periods are legislative guideposts to be observed when exercising the sentencing discretion. Careful attention to the applicable maximum penalties is required, not the least because they invite comparison between cases that are so grave as to warrant the imposition of the maximum penalty and the particular case that is before the court for sentencing.

40. The standard non-parole period for an offence is a matter to be taken into account when determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

41. Since section 54B of the Crimes (Sentencing Procedure) Act, was amended by the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013, it has not been necessary for a court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from an offence to which the standard non-parole period is referable.

42. In her written submissions, the Crown Prosecutor identifies what she contends are the relevant aggravating and mitigating factors. Some of those factors I accept. Others I reject or find the need to modify their applicability. In any event, based on those contended factors, the Crown submits, "the overall objective seriousness falls above the mid-range, and is an example of serious offending of its type". Thereafter the Crown continues that approach by applying labels of "mid range, or just below", "mid-range", or "above mid-range" to each of the 19 counts.

38. The application of such labels was the subject of comment by Beech-Jones CJ at CL (as his Honour then was) in Ragg v R [2022] NSWCCA 150. His Honour (with whom N Adams and Lonergan JJ agreed) said at [5], that such an approach can further the objective of transparency in sentencing. His Honour noted the effect of subsection 54B(6) of the Crimes (Sentencing Procedure) Act and remarked that, "in some cases, such assessments can add unnecessary complexity to the sentencing process and have little utility, especially when they yield assessments such as a finding that an offence is "below but towards the mid-range" of objective seriousness."

39. It is generally not useful to apply range labels. The relevant factors which cause a crime to be relatively more or less serious are a more readily understandable gauge of seriousness than a label attempting to fix the matter on some notional range: R v RE [2023] NSWCCA 184 and R v Wilson (a pseudonym) [2023] NSWDC 354 at [21].

40. In determining the appropriate sentence for an offence, section 21A of the Crimes (Sentencing Procedure) Act 1999 (hereafter referred to as "the Sentencing Act") requires the court is to take into various aggravating and mitigating factors, that are relevant and known to the court, as well as any other objective or subjective factor that affects the relative seriousness of the offence.

41. The objective seriousness of each of the offender's crimes will be assessed wholly and solely by reference to the nature of the offending and without reference to matters personal to him. I will address the subjective factors that affect the relative seriousness of the offence and the moral culpability of the offender after considering the matters personal to the offender.

42. The matters referred to in section 21A are in addition to any other matters that are required or permitted to be taken into account under any Act or rule of law. I acknowledge that I am not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. I also note that any such aggravating or mitigating factor that is relevant and known to the court does not, require the court to increase or reduce the sentence for the offence. An obvious example of the applicability of these considerations is where such relevant factors lend themselves to being erroneously double counted. Such a limiting rule applies beyond the simple situation where an aggravating factor in sentencing is an element of the offence.

43. The assessment of the objective seriousness of each of the sexual offences committed by the offender against his daughter feature these aggravating factors:

• First, there was a significant age difference of twenty years between he and the victim.

• Secondly, each of the offences is aggravated because they occurred within the victim's home. I am satisfied that in each instance, I have concluded that the offender used the fact that he and his daughter were in the same household to facilitate his offending.

• Thirdly, with the exception of the 13th, 15th and 22nd counts, the breach of trust and/or authority by the offender is an aggravating factor. It was a significant breach of the trust and fiduciary duty that a parent owes their child. The exception concerning the 13th, 15th and 22nd counts arises because it is an element of those offences that GD was under the authority of the offender.

49. When considering the sexual touching offences committed by the offender, the actual character of the assault, including the nature and degree of physical contact involved is a relevant consideration. Such offences cover a broad range of touching but where touching involves direct contact with the skin as opposed to contact through clothing, that renders the sexual touching offence more serious: Zhao v R [2019] NSWCCA 203 at [85]. Moreover, where the touching involves the genital region, the objective seriousness of the offending is increased: Zhao v R [2019] NSWCCA 203 at [86].

50. The physical element of the 2nd and 9th counts was that the offender touched and/or rubbed the nipples of the victim over her clothing. In a circular motion, the offender rubbed the vagina of the victim over her clothing in the 1st, 3rd, 5th, 7th, 10th, 12th, 14th, and 21st counts. In the 16th count, the offender held the victim's hand against his penis and moved it up and down. In the 17th count the offender pinched the victim's nipples.

51. None of the sexual touching offences featured the use of force or humiliation. That conclusion should be understood as meaning as absence of aggravation as opposed to the presence of mitigating factors.

52. Also relevant to the assessment of the offender's moral culpability is his motive. In this case, it is apparent that his motive was perverted sexual gratification.

53. I do not accept the Crown's submission that sub-section 21A(2)(g) of the Sentencing Act applies so as to aggravate each offence because the injury, emotional harm, loss or damage caused by the offence is substantial. In this context, I have had regard to the victim impact statement.

54. Counsel for the offender makes the valid point that GD did not assert that she felt pain on any occasion. She expressly denied feeling any such pain in her JIRT dated 10 October 2023 where she was asked at Q 699: "Did you ever have any soreness from what had happened?” and she answered, "Um, no, I don't think so". However, for over a decade, it has been uncontroversial that sentencing Courts recognise that the adverse psychological effects of sexual abuse on children tend to be long-lasting. That perspective is reinforced by sub-section 25AA(3) of the Sentencing Act which requires a Court when sentencing for a "child sexual offence" to consider the trauma of sexual abuse on children as understood at the time of sentencing.

55. I find that the fear endured by the victim, of being sexually assaulted in her own home by her father, is to be justifiably inferred from her initial disclosure on 28 July 2023 to her peer. The victim said to her friend, "I have been getting sexually assaulted by my dad for the last four years". While harm to a child victim can be so inferred, "substantial" emotional harm for the purposes of sub-section 21A(2)(g) must be proved beyond reasonable doubt. In the present case, I have concluded that a finding of substantial harm would constitute double counting because the consequences of the offending are typical of such offending: R v Gavel [2014] NSWCCA 56 at [106]. However, I am not satisfied, on the balance of probabilities, that the injury or emotional harm caused by any of the offences was not substantial.

56. I do not accept the Crown's submission that sub-section 21A(2)(l) of the the Sentencing Act applies so as to aggravate each offence as the victim was vulnerable because she was very young.

57. Sub-section 21A(2)(l) is concerned with the vulnerability of a class of victims rather than vulnerability arising from the circumstances of the offence: Du Plessis v R [2024] NSWCCA 164 at [58]-[60]. Those cases involving child sexual offences where sub-section 21A(2)(l) was properly applied featured a victim who was within a class of people that requires protection, such as a child with cognitive impairment and mental health condition (see R v Boulad [2005] NSWCCA 289 at [21]) or a deaf child with limited vocal abilities (see Chamseddine v R [2017] NSWCCA 176 at [55].

58. This does not mean however that the age of GD is not relevant. She was variously aged from 9 to 13 years of age at the time of the offending. Generally speaking, the younger the victim the more serious the offence: Shannon v R [2006] NSWCCA 39 at [28]-[29]. So, in the 1st through to the 11th count, GD was at the top of the applicable age range of 10 years for the offence. In the 22nd count she was 6 months under the top of the age range. In the remaining counts, she was either at the bottom or middle of the age range. All things considered, the young age of GD at the time of the offences does not justify an additional reason to increase the sentence for the offence because to do so would amount to double counting given the significance of the offender's breach of trust and authority.

The notion of moral culpability

59. An offender's moral culpability (and a court's assessment of it) is a sentencing consideration separate from the objective seriousness of the crime. In the context of the consideration of a standard non-parole in sentencing, that is reflected in the latter part of sub-s.54B(2) of the Sentencing Act. It is an acknowledgment that other sometimes quite powerful sentencing factors, can impact upon the sentence reached by the court.

60. I therefore now turn to consider the offender's subjective case.

61. As earlier stated, the offender SD was born in 1990. His personal history is informed by the material tendered in both the prosecution and defence cases on the sentencing hearing.

62. The offender was born without any apparent birth complications. He attended primary and secondary schools. He was diagnosed with and treated for attention deficit hyperactivity disorder (ADHD) after seeing a paediatrician when he was 9 or 10 years of age. He continued that medication for about 4 years in total. He was average to below average academically and had some behavioural issues in high school. He participated in a rural work experience program from the end of Year 8 until the start of Year 10. He left school at the end of Year 10 and subsequently worked on a farm in his late teens for about 3 years. He subsequently worked in the security industry and as a fire alarm tester.

63. The offender and the mother of GD were in a relationship of about 13 years' duration. They were married in 2018 or 2019 and have since divorced. For the past 3 years he has been in a relationship with another woman who has two teenaged daughters.

64. SD is without a criminal conviction in NSW. On separate dates in 2021, the ACT Magistrates Court convicted and fined the offender was drink driving and convicted and released on a good behaviour bond for contravening a family violence order.

65. Whilst he was therefore undoubtedly a person of good character up until he he committed the first offence upon his daughter, any credit to him for that is well overtaken by his subsequent offending.

66. As at today's date, 9 May 2025, the offender has spent a total of 171 days in pre-sentence custody. He has not incurred any breaches of prison discipline during his 171 days of pre-sentence custody. During the year from February 2024, the offender did not breach his strict bail conditions.

67. Tendered in evidence is a Sentencing Assessment Report dated 6 May 2025 and a psychiatric report by Dr Richard Furst dated 30 April 2025.

68. It is apparent that the offender continues to enjoy the pro-social support of his parents and his current partner.

69. The offender maintains his innocence. There is therefore no remorse or contrition.

70. I accept the offender is entitled to some credit for facilitating the administration of justice in the efficient conduct of the trial.

71. Given the offences for which he is to be sentenced, it is probable the offender will spend his time in gaol as a protection prisoner. In R v Burchell (1987) 34 A Crim R 148 Hunt J at 151 described as a well-known fact that child molesters are subjected to physical assaults by the inmates of regular gaols and that they are usually obliged to serve their sentences under heavy protective guard and often in isolation. See too R v Scott [2003] NSWCCA 28 by Bell J at [26].

72. Subsequent decisions of the Court of Criminal Appeal have established that whilst the hardship that will be suffered by a prisoner in gaol because he or she will be in protective custody, is a relevant matter; it can only be considered in mitigation of sentence where there is evidence that the conditions of imprisonment will be more onerous. The offender adduced evidence from his current partner. She testified that the offender has been transferred to a gaol on the mid-north coast of NSW as a result of an assault the offender suffered at the hands of another inmate. That he was so transferred is not in dispute, given the custodial records reflect that. The offender's current partner said this has halved her ability to visit him. I accept that being a sentenced child molester on protection is a relevant factor that will make the offender's time in gaol more onerous.

Consideration and Conclusions

73. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community, and the rehabilitation of the offender. The troublesome nature of the sentencing discretion is that those purposes of sentencing overlap and point in different directions.

74. Notwithstanding the offender's complete lack of remorse, I have concluded that the offender's prospects of rehabilitation are at least reasonable.

75. When sentencing for offences involving sexual interference with children, judges have an obligation to vindicate the dignity of the child survivor and, by the length of the sentence imposed, to recognise the harm done to the child. There is also, understandably, a community expectation that sexual offences against children will be severely punished. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution that will fall upon them if they commit similar crimes.

76. In the circumstances of this case, having considered all possible alternatives, I am satisfied that no penalty other than full-time imprisonment is appropriate.

77. I am required to at least indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes. Counsel for the offender submits that there ought to be a great deal of notional concurrence as between the offences within each of the nine incidents and some accumulation as between the nine separate incidents to reflect the ongoing nature of the offending and the different acts and offences which were perpetrated against the victim over time.

78. The severity of a sentence increases the longer a person must spend in custody. Whilst an extremely long total sentence may be 'crushing' upon an offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release, public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending.

79. Section 44(2) and (2B) of the Sentencing Act provide that the non-parole period for either a single sentence or an aggregate sentence must not fall below three-quarters of the term of the sentence unless there is a finding of special circumstances (in which case reasons must be recorded for the decision). Similarly, 54B(5) provides that if the court indicates under that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account.

80. Counsel for the offender submits that because this is the offender's first time in custody and a lengthy term of imprisonment will require a longer reintegration into the community, a finding of special circumstances ought to be made so that the non-parole period is reduced below the statutory ratio. Whilst I accept this will be the first sentence of imprisonment for the offender, that by itself, is not sufficiently special to justify the non-parole period falling below three-quarters of the term of the sentence.

81. I accept that after serving a long sentence, the offender is going to need help in adjusting to normal community life. He will need to be monitored in the community, and he may well need sex offender treatment in the community. In so finding, I am mindful of the requirement that the minimum period that the offender should be imprisoned for must properly reflect the gravity of his offences and the punitive purposes of sentencing. The aggregate sentence of imprisonment that will be imposed includes a period of supervision on parole that is well capable of facilitating the offender's rehabilitation and reintegration into the community.

82. As the offender is to be sentenced for a "serious offence" within the meaning of the Crimes (High Risk Offenders) Act 2006, I am required by virtue of s 25C of that Act to cause the offender to be advised of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the serious offences for which the offender is to be sentenced. I propose complying with that requirement by asking the offender's barrister and/or solicitor to undertake that task on the Court's behalf.

83. In the present case, I will impose an aggregate sentence. In so doing, I am obliged to take into account any applicable standard non parole period in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender in the process of instinctive synthesis. I am also obliged to indicate, for those offences to which a standard non parole period applies, the non parole period that I would have set for each such offence to which the aggregate sentence relates, had I set a separate sentence of imprisonment for those offences. As well, if setting a non parole period that is longer or shorter than the standard non parole period, I must record the reasons for doing so, including each factor taken into account for doing so.

84. The indicative sentences of imprisonment are as follows.

Count 1: 2 years with a non parole period of 18 months.

Count 2: 2 years with a non parole period of 18 months.

Count 3: 3 years 8 months with a non parole period of 2 years 9 months.

Count 4: 7 years with a non parole period of 5 years 3 months.

Count 5: 3 years 8 months with a non parole period of 2 years 9 months.

Count 6: 8 years and a non parole period of 6 years.

Count 7: 3 years 8 months with a non parole period of 2 years 9 months.

Count 8: 6 years with a non parole period of 4 years 6 months.

Count 9: 2 years with a non parole period of 18 months.

Count 10: 3 years 8 months with a non parole period of 2 years 9 months.

Count 11: 7 years with a non parole period of 5 years 3 months.

Count 12: 2 years.

Count 13: 5 years with a non parole period of 3 years 9 months.

Count 14: 3 years with a non parole period of 2 years 3 months.

Count 15: 5 years 6 months with a non parole period of 4 years 1 month.

Count 16: 4 years.

Count 17: 3 years.

Count 21: 3 years.

Count 22: 8 years and a non parole period of 6 years.

85. I have indicated non parole periods lower than the applicable standard non parole period due to the findings as to the relative seriousness of the offences, and the fact that the offender is going to be spending his time in protective custody.

Orders

1. The offender is convicted of each of the 19 offences for which he was found guilty by the jury on 27 February 2025.

2. The offender is sentenced to an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years.

3. The non-parole period will commence on 19 November 2024 and will expire on 18 November 2039.

4. The balance of term of 5 years will commence on 19 November 2039 and will expire on 18 November 2044.

5. The offender will be eligible for release to parole at the expiration of the non-parole period.

Decision last updated: 15 May 2025